Marinelis SENA, Administratrix (Estate of Tyrone O. Tillman), et al.
v.
AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INC., et al.
Argued
October 18, 2018
Page 1111
[Copyrighted Material Omitted]
Page 1112
[Copyrighted Material Omitted]
Page 1113
Appeal
from the Superior Court in the judicial district of
Fairfield, where the court, Kamp, J.
J.
Christopher Rooney, with whom were Alan Bowie and, on the
brief, Anne Peterson, for the appellant (defendant city of
Bridgeport).
Alan
Scott Pickel, Stamford, with whom, on the brief, was Anthony
L. Cenatiempo, for the appellees (plaintiffs).
Robinson,
C. J., and Palmer, DAuria, Mullins, Kahn, Ecker and
Vertefeuille, Js.
OPINION
ROBINSON,
C.J.
[333
Conn. 32] This appeal requires us to consider the nature and
scope of the immunity provided to the state and its political
subdivisions by General Statutes § 28-13 (a)[1] for actions
Page 1114
taken in connection with a civil [333 Conn. 33] preparedness
emergency declared by the governor pursuant to General
Statutes § 28-9,[2] which, in the present case, related to
a blizzard that occurred in February, 2013. The defendant
city of Bridgeport (city)[3] appeals[4] from the trial courts
denial of its motion for summary judgment in the present
case, which was commenced by the plaintiff, Marinelis Sena,
both individually and as administratrix of the estate of
Tyrone O. Tillman.[5] The operative complaint alleges, inter
alia, that the city was negligent in (1) not following its
usual practice of sending a fire truck with an emergency
medical technician in addition to an ambulance to render
medical care to Tillman when he experienced severe breathing
difficulty on February 11, 2013, and (2) preventing the
ambulance from arriving promptly by allowing snow to remain
on certain public roadways. On appeal, the city claims, inter
alia, that it was immune for its actions [333 Conn. 34]
pursuant to § 28-13, and that the trial court improperly
determined that a genuine issue of material fact existed as
to whether the civil preparedness emergency remained in
effect on the date of Tillmans death. We conclude that (1)
an appealable final judgment exists because the citys claims
of immunity pursuant to § 28-13 implicate an extension of the
states sovereign immunity to the city, and (2) the trial
court should have granted the citys motion for summary
judgment because there was no genuine issue of material fact
with respect to the applicability of § 28-13. Accordingly, we
reverse the judgment of the trial court.
The
record reveals the following relevant facts[6] and
procedural history. On February 8 and 9, 2013, a blizzard,
verified by the National Weather Service, occurred in nearly
all of southern Connecticut. In anticipation of the blizzard,
on February 7, 2013, at 1 p.m., representatives from the
citys various departments and the local emergency
preparedness board convened a meeting of the Bridgeport
Emergency Planning Group, which was held at the citys
emergency operations center (EOC). At that meeting, the
members from the
Page 1115
citys departments reviewed the citys emergency preparedness
plan, designated representatives who would attend civil
emergency planning sessions, and began to identify essential
personnel who would be assigned during the expected
emergency.
On
February 8, 2013, beginning at 7 a.m., the city began to
implement its emergency preparedness plan. Full operations at
the EOC were initiated that morning, and numerous city
officials conducted a conference [333 Conn. 35] call with the
statewide emergency operations center in order to ensure that
the citys storm response was coordinated with the states
efforts. At 11 a.m., Mayor Bill Finch held a press conference
and announced his intention to declare a civil preparedness
emergency for the city, which included the institution of a
citywide ban on driving so that plows could keep the roads
clear. At 11:45 a.m., Governor Dannel Malloy held a press
conference and declared a civil preparedness emergency
pursuant to § 28-9.[7] Shortly thereafter, the EOC activated
its response at level 4 and assumed centralized control over
the citys response to the blizzard.[8]
By 5
p.m. on February 8, 2013, Governor Malloy had issued a
statewide travel ban of all vehicles on any state road. By 8
p.m., snowfall was so severe that the EOC determined that it
was unsafe for all vehicles other than [333 Conn. 36] plows
to be on the citys roads. Whiteout conditions later that
night required the recall of all plows. The EOC then
restricted the response of municipal fire and police
departments. Decisions regarding whether those departments
would respond to reported emergencies were made by their
representatives at the EOC, rather than by emergency
communications employees. William Schietinger, the
representative at the EOC from the citys ambulance
contractor, American Medical Response of Connecticut, Inc.
(AMR), similarly suspended ambulance service temporarily
because of whiteout conditions. As visibility improved, the
EOC decided that AMR could resume providing ambulance
service, and, at 3 a.m. on February 9, 2013, plows returned
to the streets.
Beginning midday on February 9, 2013, the EOC shifted its
attention from storm response to snow removal. The snow
removal
Page 1116
process was unusually difficult because snow accumulation
reached a level higher than the typical dump truck with plow
attached could move, and many cars had not been removed from
public streets, despite the parking bans in effect. This
resulted in vehicles having to be dug out and towed before
streets could be plowed. Because of the substantial snow
accumulation, the EOC requested that the state send national
guard personnel and equipment to assist with snow removal and
emergency responses. That additional snow removal equipment
did not begin to arrive until February 10, 2013. Given the
paralyzing snow accumulation, most of the citys residents
were confined to their homes.
The
limited ability of the fire and police departments to respond
to calls for assistance continued in the wake of the storm
because most police and fire stations had not yet dug out. On
February 10, 2013, at 2 a.m., Brian Rooney, the citys fire
chief, and Dominic Carfi, a deputy fire chief who had been
the fire departments representative [333 Conn. 37] at the
EOC during the storm, determined that, in the case of medical
emergencies, the only response would be through AMR because
it was not physically possible for the citys fire trucks to
leave the stations. Carfi conveyed that decision to the
citys 911 emergency communications employees via their
supervisor. Once fire headquarters was cleared of snow by
approximately 10 a.m. that day, the fire department was able
to use a limited number of four wheel drive sport utility
vehicles that could be driven on plowed streets to respond to
emergencies. In consultation with AMRs representative in the
EOC, a deputy fire chief who had relieved Carfi would
authorize the dispatch of one of these sport utility vehicles
to emergency medical calls depending on road conditions, the
location of the call, and the severity of the medical
condition.
On
Monday, February 11, 2013, twelve front end loaders arrived
and provided assistance in the clearing of the citys primary
roads. However, city offices remained closed, no regular city
employees reported for work, and schools would remain closed
for the remainder of the week. As of 8 p.m. that day, a
citywide driving ban remained in effect, and only 100 roads
were open to emergency vehicles. Most of those were primary
roads. Several hundred secondary roads were still closed or
impassible, and tow trucks were still in the process of
removing abandoned vehicles.
At
approximately 7:18 p.m. on February 11, 2013, Tillman called
911 complaining of severe breathing difficulty. At 7:27 p.m.,
AMR dispatched an ambulance to assist Tillman. The fire
department did not respond. According to an affidavit
submitted by Scott Appleby, the citys Director of Emergency
Management and Homeland Security, Stevens Street, on which
Tillman lived, had not yet been plowed at that time. Brian
Walts and William T. Ostroff, emergency medical technicians
employed by AMR, reached Tillman at 7:36 p.m. and [333 Conn.
38] rendered emergency care until 8:04 p.m. Tillman was
subsequently transported to a local hospital, where he was
pronounced dead upon arrival.
The
efforts to clear at least one lane on each of the citys
roads continued until February 12, 2013. It took an
additional week for the citys roads to be cleared to the
point where traffic could pass normally. The EOC maintained
command over storm response and snow removal through February
14, 2013, after which operational control over the various
city departments, including the fire department, was returned
to the normal operating ...